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TMI Blog2009 (12) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... cate, for the Petitioner, S/Shri Ajay Kumar , S.C. Puri and Ms. Sangita Bhayana, Advocates, for the Respondent. [Order] - This petition under section 378(IV) Cr. P.C has been filed for leave to appeal by the DRI officials against the judgment dated 15-6-2007 passed by Ld. ACMM, Delhi in complaint case number 295/1/88 under section 135(1)(b) of Customs Act, whereby the Ld. ACMM has been pleased to acquit the accused persons/respondents of the aforesaid charge. 2. The case of the prosecution/petitioner is that a maruti car bearing No. DDQ-6910 was intercepted on 28-9-1988 by the officers of the Delhi Zonal Unit of DRI near Delhi-Haryana Border at Sarai Khwaja Check Post near Faridabad and escorted to the DRI office at Pary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statements tendered under section 108 of the Customs Act, 1962, constitute cogent and legally acceptable evidence and even conviction can be based upon such statements. (b) That in his statement under section 108 of the Customs Act, the respondent no.1 Moni has slated that he had brought Rs.60,000/- from M/s Kanchan Jewellers and handed over to Diwan Singh Verma who was involved in the smuggling of gold biscuits and therefore mere retraction of the said statement is of no help to the respondent. (c) That as regards to respondent no. 2, Kanchan Lal Aggarwal, on 29- 2-88, Rs.49,656/- being the sale proceed of smuggled gold were re covered along with six loose documents, which were the account of transaction of gold and payment through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted from his so called voluntary statement under Section 108 of the Customs Act, 1962 and in fact he has appeared as a defence witness before the Ld. Trial Court where he stated that he never delivered any silver or gold or any other item to an) Kanchan Lal Aggarwal i.e. respondent no.2 or at the firm M/s. Kanchan Jewellers, he also stated that he did not know respondent no. 2 or his family. The respondent no. 1 also submitted that he never brought Rs. 60,000/- from Kanchan Lal, Respondent no. 2. 6. It is the case of respondents that Shri Bulaki Das Aggarwal, the Presi dent of Sarafa Committee in Mathura was examined as DW -1 before the Ld. Trial Court wherein he categorically slated that the father of respondent no. 2 had a shop name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Id. ACMM concerned after taking into consideration all the facts and circumstances of the case as well as the statements made by witnesses. The Ld. ACMM has rightly observed that: PW14. Sh. Dev Singh this witness was declared hostile. However, he had admitted his signature on the panchnama. During his cross-examination by the prosecution, he has specifically stated that he had not made any com plaint to the police or any other agency regarding obtaining his signatures forcefully by the officers on the panchnaina Ex. PW9/A. I have considered the testimonies of defence witnesses i.e. DWI Bulaki Dass and DW2 Mont who is also accused no. 6 before this court. Coming first to the sanction and authorization which is Ex. FWIIB given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Ilenee it is apparent that the prosecution has not been able to connect the accused Kanchan Lal and Moni at all with any of the documents so recovered and hence the statement recorded by the customs officers under Section 108 of the Customs Act which was later on retracted cannot form the basis of conviction in so far as these two accused are concerned. Accordingly the benefit of doubt is being given to the accused Kanchan Lat Aggarwaland Moni who are hereby acquitted. Their sureties stands discharged. 9. It is alter taking into consideration all these circumstances the trial court has been pleased to observe that the case of prosecution against both the respondents is highly doubtful and cannot be relied upon in the absence of any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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